Closing the prison for alleged terrorists at Guantanamo Bay may or may not be a good idea. But if, as seems possible, President Obama shuts it and transfers the inmates to military prisons inside the United States, he will be acting against the manifest will of Congress.
Large bipartisan majorities have repeatedly enacted national defense bills containing provisions that bar the use of appropriated funds for that purpose.
Obama has signed each bill, expressing reservations about the Guantanamo provisions. The exception was the next-to-last defense bill, which he vetoed, partly on other grounds. After the recent passage of yet another bill--by a bicameral, veto-proof, bipartisan majority, including a toughened Guantanamo-closure ban--the White House predicted he would sign it even though he remains determined to fulfill a 2008 campaign pledge to close the prison. The only way to do that would be on his own.
Can he? According to the influential analysis in Justice Robert H. Jackson's 1952 Supreme Court opinion on presidential powers, the president's constitutional authority is "at its lowest ebb" when he takes steps "incompatible with the expressed or implied will of Congress." Any action "at once so conclusive and preclusive must be scrutinized with caution," Jackson wrote.
Advocates of unilateral action on Guantanamo don't dispute the applicability of Jackson's paradigm; they argue that even this exacting standard gives Obama ample authority to shut Guantanamo. He's waging war lawfully pursuant to the 2001 Authorization for Use of Military Force against al-Qaida, et al. Accordingly, as commander in chief, he has wide latitude over the conduct of hostilities, including the treatment of detainees.
If anyone's violating the Constitution, it's Congress, by purporting to micromanage the president's tactical decisions, according to a thoughtful Washington Post op-ed by former administration lawyers Cliff Sloan and Gregory B. Craig.
"The question here is not whether the president can unilaterally take the nation to war or hold detainees without congressional authorization," they write. "The question is whether Congress can tell the president where military detainees must be held."
This would distinguish Congress's current ban on funds to close Guantanamo from its 1984 ban on spending to aid the Nicaraguan contras, the circumvention of which by Republican Ronald Reagan's administration infuriated Democrats and triggered the Iran-Contra affair. The former purports to interfere with presidential conduct of an ongoing, authorized conflict; the latter purported to prevent the president from starting an unauthorized one.
In truth, the Supreme Court has never squarely addressed this precise issue. Jackson was writing about President Harry Truman's nationalization of steel mills to support the Korean War effort without congressional support--not against legislated congressional opposition.
Sloan and Craig invoke a nearly 70-year-old case, U.S. v. Lovett, which held that "Congress may not use its appropriations power to achieve goals otherwise beyond its constitutional authority," they write.
However, Lovett turned not on Congress' power of the purse as such, but on its use to punish without judicial trial certain individuals by withholding their salaries, which the court struck down as a bill of attainder.
At least some Founders implied that Congress could check presidential war-making through its spending power. George Mason said: "When the same man, or set of men, holds the sword and the purse, there is an end of liberty." In Federalist 38, James Madison called it "particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands."
Even if Obama's power as commander in chief allows him to close Guantanamo, and to negotiate the prisoners' transfer to other nations, bringing the men into the United States might impinge on Congress' authority over immigration law--a separate, if, so far, unannounced, constitutional basis for its attempted ban.
Furthermore, the Constitution gives Congress power to "make rules concerning captures on land and water." This has historically been construed to mean physical property, but Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit has suggested in a recent opinion that it might apply to prisoners as well.
Things might be different in a "short-term emergency," Kavanaugh noted. But the fact that Obama has acquiesced in Congress' ban for roughly six years undercuts his claim that executive action is extra-urgent now.
It's not entirely clear how a presidential Guantanamo closure could get to the Supreme Court; someone would have to show actual injury worthy of standing to sue. Neighbors of a base designated to hold the prisoners? Congress itself?
If history teaches anything about presidential power, it is that politics and policy shape constitutional arguments. The arguments advanced by Obama's backers now are similar to those in a 1970 memo by President Richard Nixon's assistant attorney general (and later Chief Justice) William H. Rehnquist, against the McGovern-Hatfield amendment to defund the Vietnam War.
In 2008, Obama faulted President George W. Bush for "trying to bring more and more power into the executive branch, and not go through Congress at all."
Now Obama might be about to risk the same accusation for an objective that he may prize above perfect consistency.
Editorial on 11/22/2015